The Slip Rule in Family Law
It is inevitable that mistakes will be made in court documents. The slip rule is a rule that exists to allow an order to be amended if it contains an accidental “slip” such as a clerical error, mistake or omission. Examples include a party’s name being spelled incorrectly, or a typo in a date. The slip rule means an order can be varied without the need for parties to return to court, while ensuring the order clearly and accurately reflects the intentions of the parties and the court.
The slip rule applies in all areas of law but in family law matters, it is governed by the Family Law Rules 2004. It derives from Rule 10.13 of the Federal Circuit and Family Court of Australia Rules 2021, which state the court may at any time vary or set aside an order if there is a clerical mistake, and or error caused by an accidental slip or mission.
The rule does not allow reconsideration of the substance of the court’s ruling, so it is different to the power of court to amend orders for reasons such as if the order was made under duress or obtained by fraud.
It can be applied either by consent or at a judge’s own initiative.
Principles governing the application of the slip rule include:
- its purpose is to avoid injustice to litigants;
- as such, it should not be constrained by a narrow or constrictive approach;
- it is not available as a matter of course;
- it is “to be exercised sparingly, lest it encourage carelessness by a party’s legal representatives and expose to risk the public interest in finality of litigation” (from the 1985 High Court case of Gould v Vaggelas);
- a correction speaks as from the date of the original judgment or order.
Pawley & Pawley
The 2017 Family Court case of Pawley & Pawley often used to illustrate when the slip rule can be applied.
A married couple in the Hunter Valley separated, and their two small children lived with the mother. The father saw one child for one day a week, and the other only during handovers. The mother formed a new relationship and relocated five hours away to Coffs Harbour. The father sought an injunction restraining the mother from “relocating the children from where they reside or removing the children from their previous environment without the prior written consent of the father”. The father did not know the mother had already relocated.
The father also sought orders that the mother and father have equal shared parental responsibility, that the children live with the mother, and that the children spend time with him on non-consecutive days he specified. The mother filed a response seeking sole parental responsibility, that the children live with her, and the children spend time with the father on consecutive days.
The court made an order that the children live with the mother and specified the times they were to spend with their father. The father filed an appeal on the grounds that the judge had not made an order requiring the mother and children to return to the Hunter Valley, the outcome the father clearly wanted after discovering the mother and children had already moved.
On learning of the appeal, the judge responded: “when I heard that an appeal had been lodged on the basis that I hadn’t prevented the relocation, my initial response was incredulous because I thought that my orders had clearly set out that the mother was not permitted to relocate on an interim basis. When I reviewed the orders, it seemed to me that the orders didn’t reflect the intent that I meant them to”.
On short notice to the parties, and after exchanges with the parties’ solicitors, the judge amended the order to restrain the mother “from relocating the children’s residence from the [Hunter Valley] region between Wednesday and Saturday”.
The mother then filed an appeal, challenging the amended order. The question was whether the judge erred in relying on the slip rule to amend the order.
In assessing the appeal, the court determined that the slip rule can be applied only where the proposed amendment is one about which there can be no real difference of opinion. Because this condition was not met, the judge was ruled to have erred in amending the order. The court pointed to several possible outcomes the judge may have contemplated in amending the order: that the mother live in the Hunter Valley at all times, that she remain in the area only from Wednesday to Saturday, or that the mother could determine where she lived provided she made the children available to the father at the determined times.
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